U.S. wants constitutional issues dropped

10/08/2008
By JODY McNICHOL , Dispatch Staff Writer
www.oneidadispatch.com

New Interior Department motion in land-into-trust appeal to be heard Nov. 7
WAMPSVILLE -The United States doesn't want to argue the Constitution.



The Department of Interior is asking the Second Circuit Court of Appeals to dismiss any complaint in the land into trust lawsuits that refer to the U.S. Constitution. The DOI made the decision to take 13,004 acres of land in Oneida and Madison counties into trust for the Oneida Indian Nation. Following that decision, the state, counties and some private organizations filed lawsuits against the DOI.


For the state and the counties of Madison and Oneida, the motion to dismiss refers to the first, second, and the 17th complaints, according to Rochester Attorney Dave Shraver.


Litigation expert on Indian affairs from the firm Nixon Peabody, Shraver gave a brief update on the land into trust lawsuits before the Madison County Native American Affairs Committee went into closed-door executive session Tuesday.


The first complaint says the delegation of authority from Congress to the Bureau of Indian Affairs is unconstitutional.


The second also refers to the delegation of authority, this time as it relates to the Tenth Amendment in the Constitution.


The amendment states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."


County Attorney S. John Campanie said that the DOI's plan to take the acreage from New York state is contrary to the amendment.


The 17th complaint in the suit relates to the Indian Gaming Regulatory Act, which requires a two-step process. The state is arguing that the decision exceeds the authority of the DOI and that the decision cannot be made without the governor of the state and the secretary of the interior agreeing.


The state will respond that the points are valid, forcing the DOI to argue those issues before the rest of the complaints are addressed.


"If we win on one of those points, we win the whole case. If we lose, the case is still alive because the issues are still on the table," Campanie said.


Also, County Administrator Paul Miller briefed the committee on the New York State Association of Counties Conference held in Niagara Falls recently. Miller said NYSAC has committed to support legislation requiring the state to collect taxes on gasoline and cigarettes sold by Indian tribes. "More people are talking about it than I have ever heard at a conference before," Miller said.


The request to dismiss the complaints that argue the constitutionality of the DOI decision is scheduled to be heard by Judge Lawrence Kahn in Albany on Nov. 7.